N4372 

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO. 38 OF 2010

STATE

V

FAMUNDI BADI MOIBAMO (NO. 3)
Offender

Goroka: Ipang AJ
2011: 20 & 25 August

CRIMINAL LAW – Sentence – Criminal Code Act –s.299 (1) – Wilful murder – Sentencing principles – mitigating and aggravating factors – Sentencing guidelines in Manu Kovi v The State (2005) SC 789 applied.

CRIMINAL LAW – Prisoner's antecedent's – nil prior convictions – defector provocation in non-legal sense – Pre –sentence Report (PSR) and Means Assessment Report (MAR) taken in to consideration.

CRIMINAL LAW – Serious as it took place within the heart of Goroka – in full view of people walking or community and in broad day light. Goroka township has witnessed in the recent past- brutal killing and blood of innocent victims Goroka town is no battle field as such no blood should be spilled within its township. Goroka town is the modern commercial hub and gateway to Highlands Provinces with people from all walks of life present. A specific and general deterrence sentence must be imposed.

Cases Cited

Manu Kovi v The State (2005) SC789
Goli Golu v The State [1979] PNGLR 653
Avia Ahia v The State [1982] PNGLR 92
Ume v The State (2006) SC386

Counsel

Mrs. V. Mauta, & Ms. B.Gore, for the State
Mr. R. Kasito, for the Prisoner

DECISION ON SENTENCE

26 August, 2011

1.	IPANG AJ: The offender Famund Badi Moibamo pleaded not guilty to one count of willful murder pursuant to section 299(1) of the Criminal Code Act, chapter 262. A trial was conducted and at the conclusion of the trial, I found him guilty and entered a conviction against him. He now appears before me for his sentence. 

2.	 The facts as I found are these: On the 13 of September 2009 at around 4.00 pm near the YWCA Hall in Goroka, the prisoner was walking along the road with the deceased his wife. Both the prisoner and the deceased were arguing with each other as they were walking. The prisoner who had a knife with a long sharp blade in his possession at that time, pulled the knife out and instantly stabbed the deceased on her right side lower abdominal area.

3.	 The deceased fell down on the ground and called out in pain. Sailas Araupa who was walking along the vicinity of that road and close ran to the aid of the deceased. Sailas Araupa asked the prisoner why he stabbed the deceased. The prisoner replied, "she misbehaved having affairs with other men, so I intend to kill her so I killed her."(sic) After saying this, the prisoner left the scene with the knife in his hand. Sailas was with the deceased on the side of the road. Sailas stopped a white double cab utility vehicle belonging to Protect Security (currently G4S Security) and assisted the deceased to the Goroka Base Hospital. However, upon arrival the victim was confirmed dead. Sailas remained with the deceased body till one of the deceased relatives came and Sailas left for the Police station to report the matter.

ALLOCUTUS

4.	 In administering his allocutus, the prisoner has this to say, 

"I thank you, Honour. I thank you for giving me time. I say sorry to God. I say sorry to the complainant. This incident should not come this way. My wife had affairs with four (4) men. I brought her to the village court. She did not turn up in court. She went out with another man. I saw this man with my own eyes at the main market so this incident happed.

Since a small boy, I faced no problem like this. I have never appeared in the village court, District Court and the Supreme Court. I am sorry. I paid compensation in the sum of K7250.00. Victim's relatives are at peace"

SUBMISSION BY DEFENCE COUNSEL

5.	 Mr. Kasito of council for the prisoner submitted that the maximum death penalty is usually reserved for the worst type of willful murder cases. See Steven Loke Ume v The State (2000) SC 836. In Hure Hane v The State [1984] PNGLR 105, the Supreme Court sets out the types of willful murder cases. Counsel submitted that this case is not a worst type of willful murder case which will warrant imposition of the maximum death penalty. Again, the counsel also submitted that the penalty of life imprisonment is usually reserved for the lower end of the worst of willful murder cases. Counsel referred to tests or factors under category 3 of the Manu Kovi case which provide platform for sentence of life imprisonment. 

6.	Counsel submitted that the present case can be distinguished from Manu Kovi Case category 3 in that there are no special aggravating factors and there are strong mitigating factors. Furthermore counsel submitted that the killing was not a brutal one and was not a cold blooded one. 

7.	The Pre-sentence Report (PSR) and the Means Assessment Report (MAR) compiled provide the following: 

The Community leader William Kafare, Ray Kafare – SDA Pastor and Newton Kamuru WARD 3 llg Unggai Council President spoke favourably about the offender that his a humble person. That he never assaulted his wife prior to the offence. They said he is a cool and calm person who always minds his own business. The community leaders said the whole community was shocked when they heard about the incident. This is because the offender had not demonstrated aggressive behavior in the past. The community leaders on behalf of the community requested leniency for the offender. They further stated that the community had never experienced such offences for many years. The deceased brother Smith Pepeto confirmed deceased relatives have received K7, 250.00 compensation and have no additional demand.

8.	In determining the appropriate head sentence, counsel submitted that the case falls under the lower end of category 1 and the upper end of category 2. Under category 1 the sentencing tariff is 15 -20 years and under category 2, the tariff is 20 -30 years imprisonment. Counsel said under category 2 of Manu Kovi case, there must be pre- planning and the prisoner must have strong desire to kill. Counsel said the present case was a one –off incident at the time when the prisoner saw the deceased walking with another man, who was suspected of having affairs with his wife.

9.	Counsel for the prisoner submitted that in the current case, the mitigating factors outweigh the aggravating factors. Counsel submitted that the court should start with a head sentence of between 17-20 years but more specifically 18 years.

SUBMISSION BY STATE

10.	Ms. B. Gore of Counsel for the State submitted that in determining the appropriate sentence for the prisoner the court may be guided by the principals outlined in Manu Kovi's Case (supra). The following principals were outlined in Manu Kovis Case:

1.	In a plea case where there are mitigating factors with no aggravating factors like no weapons, little or no planning, minimum force used and absence of strong desire to kill is 20-30 years.

2.	In a trial or plea where there are mitigating factors as well as aggravating factors. Where there was pre-planning, vicious attack, weapon used and strong desire to kill is 20-30 years.

3.	In a trial or plea where there is special aggravating factors and the mitigating factors are reduced in weight or rendered insignificant by gravity of offence. Brutal killing, killing in cold blood, killing of innocent, defenseless or harmless person, dangerous or offensive weapons used, and killing accompanied by other serious offence, victim young or old, pre-planned and pre-meditated –Life imprisonment.

4.	Worst case in a trial or plea where there is special aggravating features, no extenuating circumstances, and no mitigating factors or rendered insignificant by gravity of offence i.e. pre-meditated attacked, brutal killing in cold blood, killing of innocent or harmless person, killing in the course of committing another serious offence and complete disregard of human life – Death.

11.	 Ms. Gore submitted that the Supreme Court in Manu Kovi v The State (supra) stated that "the sanctity and value of human life is far more precious and valuable than anything else and no amount of remorse or compensation will restore life lost. The unlawful taking of another person's life is a serious and horrendous crime which must be adequately punished. The courts have re-iterated this basic and fundamental principal in many cases"

12.	 State Counsel therefore submitted that this Court should be mindful that a human life has been lost, the use of dangerous weapons, the prevalence of such offences and the need for specific and general deterrence, a sentence of between 20- 30 years is appropriate.

The brief facts of the much sought about case of Manu Kovi is as follows:

The appellant pleaded guilty to stabbing of his wife. The couple had one daughter and had been living apart for some time. The appellant met the deceased and they had an argument over their daughter. They then parted. The appellant went to a supermarket and purchased a small bush knife. He then boarded a PMV where the deceased was a passenger in that bus. The appellant sat next to her and spoke to her. When the bus reached the road junction, the appellant pulled out the bush knife, which was hidden under his clothes, and cut her repeatedly. The bus crew and passengers stopped the appellant from further attacking her. He surrendered himself and was taken into police custody. The deceased was rushed to the hospital but she died on the same day from loss of blood from multiple stab wounds. The medical report of Dr. Golpack shows multiple knife wounds on both sides of her head, on her left arm, elbow joints and wrist and on her back. One of the wounds at the back located at the tip of the right shoulder penetrated her right lungs causing it to collapse.

On appeal on excessiveness of sentence, the appellant stated that "the trial judge erred in not taking into account the fact that his wife was unfaithful to him when he was in prison. When he was released from prison, he took the matter to court and later forgave her. He says he tried hard to "uphold the dignity of our marriage through love and forgiveness" but she made life difficult for him. On the bus he tried to talk to her about why she sent away their small daughter to live with someone else but she did not respond. This "stimulated my anger and this has aggravated me to do what I shouldn't have done". He says the killing was "through emotional stress and passion. 

The Supreme Court dismissed his appeal and up held the sentence of life imprisonment.

13.	The Manu Kovi's case presented a set of facts more liken to the facts of the present Famundi Badi Moibamo's Case. Manu and the deceased had a daughter like Moibamo and his deceased wife had a son. Both had lived separately with their wives. Both suspected their wives of been unfaithful and having extra martial affairs. Both prisoners Manu and Moibamo used knives to kill their wives. However, in Manu Kovi's case the deceased had multiple stab wounds unlike Moibamo's case there was evidence of one stab wound. Upon appeal to the Supreme Court, Manu's appeal was upheld and sentence of life imprisonment was imposed. 

14.	In the Schedule of comparable sentence on offences of willful murder on the following cases, these are the types of sentences imposed. 

TABLE 1 SUPREME COURT
Case/Date of Decision	Offences	Sentence	Particulars	Result	
Goli Golu
V
The State
Raine Dep CJ,
Kearney J & Wilson J 

1979 PNGLR 653	Wilful Murder 	Life imprisonment 	Appellant had attended the Kwikila court house with members of his clan as a result of a riot involving the accused's clan and that of the deceased. The appellant was not an accused in the riot case. The accused chased down and stabbed the deceased.

Court stated that life imprisonment should be reserved for the most serious instances of this type of offence.
Discussion of the effect of section 141 and 142 of the Corrective Institutions regulations 1959 on persons sentenced to life imprisonment.

Appellant in his mid twenties. He was married with two children. He was well educated and was in employment. He had no prior convictions.

Plea of not guilty (self defence and provocation )	Appeal allowed and an effective sentence of 12 years and 6 months imposed.	
Avia Ahi 
V
The State 
Kidu CJ, Kearney Dep CJ, Greville Smith J, Andrew J & Kapi J 

1982 PNGLR 92	Wilful Murder	Life 
Imprisonment 	The appellant was sentenced to life imprisonment for the payback killing. The deceased was charged with dangerous driving causing the death of the appellant's husband. The deceased was attending a court review with the court trying his case when he was attacked and killed.

Discussion of the "worst case" and when life imprisonment is applicable for willful murder. Offender who was shown not likely to re-offend should be given more leniency that those who are likely to re offend.
Plea of guilty	Appeal dismissed	
Manu Kovi v The State unreported judgment of the Supreme Court SCRA no: 51 of 2003 Injia DCJ. Lenalia and Lay JJ	Murder (Court considered tariff for all homicide cases)	Life imprisonment 	The appellant was charged with the willful murder of the wife. The Supreme Court dismissed the appellant's appeal but set sentencing principals for all homicide cases. 
Principal on each category for willful murder are:
1.	Ordinary case, mitigating factors with no aggravating factors -15 to 20 years.
2.	Sentence after trial or plea, mitigating factors with aggravating factors 20 to 30 years.
3.	Sentence after trial or plea special aggravating that render insignificant any mitigating factors – Life imprisonment; and
4.	Sentence after trial or plea, worst case, "special" aggravating factors and no extenuating circumstances that reduce the weight of reduce insignificant any mitigating factors – Death
Prior conviction for GBH involving an attack on his wife -18 months imp	Appeal dismissed
NOTES ON EACH CATEGORY:
1."Ordinary case" – no weapons, little or no premeditation or pre-planning, minimum force used and absence of strong intent to kill;
2.Pre-planned vicious attacks weapons used and exhibits a strong desire to kill.
3.Killing types –brutal in cold blood innocent defenceless of harmless victims, victim young or old, dangerous or offensive weapons used accompanied by other serious offence, pre-planned or pre-meditated with strong desire to kill exhibited; and 
4. Worst case.
	
Ume v The State (2006) SC386 Waigani: Kapi CJ, Injia DCJ, Los, Hinchliffe & Davani 	Wilful murder	Life imprisonment 	The appellant was convicted for wilful murder and was given death penalty.
On appeal, the court identified several errors in law. Furthermore the trial judge erred in finding that there were no mitigating factors when in fact there were relevant mitigating factors such as the appellant's previous good character, their first offender status, their Christian back ground, stable family back ground and their rural village upbringing.
The death penalty was quashed and each appellant was sentenced to imprisonment for life. 

PLEA OF NOT GUILTY	Appeal allowed and sentence of death penalty substituted with life imprisonment. 	

NATIONAL COURT
Case/Date of Decision	Offences	Sentence	Particulars	Result	
The State 
v 
Yapes Paege & Relya Tanda	Wilful murder	Life imprisonment 	Appellant ambushed the deceased as he left his house to investigate a disturbance. There was evidence that the killing arise out of a tribal dispute. Deceased cut with a bush knife.
Discussion of applicant of the term "worst case" 
Discussion of the discretion under section 19 of the Criminal Code Act.
Prosecutor made a submission against the death penalty.

Plea of not guilty	No Appeal	
The State
v
Kepak Langa Jalina J,
26 September 2003
At Wabag N2462	Wilful murder 	Death	Deceased was ambushed by the prisoner and a group of others. He was chopped on the head. The killing was a payback killing by the prisoners's tribe upon the deceased's tribe.
Discussion of the frequency of payback and tribal killings. Maximum penalty should only be imposed from the worst case
HH decided that this was not a payback killing as the deceased came from the same tribe as the prisoner. This was a killing of a defenceless man in cold man in "cold blood"	Appeal has been lodged but yet to be heard.	
The State
V
Mark Poroli
Lenalia J
25 August 2004
At Mendi
N2655	Wilful murder	Death 	The deceased was a policeman who was part of an escort of a politician in the Southern Highlands Province. There were 4 vehicles in the convoy, including the police vehicle. The escort team came across a crowd near a village. The crowd began to attack the convoy, the police vehicle left the convoy. The police vehicle had its tyres shot out in the gun battle. The deceased and the other police left the vehicles on foot for safety. The deceased was captured by villages and taken to the prisoner. The deceased was led by the prisoner and the villages to a cliff. The prisoner shot the deceased in the head with one shot after being allowed to say his last prayers. 
The prisoner said he was sorry for what he did when asked on the allocutus. He said "a" policeman had shot his uncle, who had raised him many years previously. HH said that "payback" cannot extend these situations as a factor of "de-fecto provocation".
Review of the cases categorized as "worst case"
HH said this was an unwarranted killing of a policeman and falls into the "worst case" category.
Plea of guilty	Appeal has been lodged but yet to be heard.	
The State
V
Jude Genad
& 4 Others
Kapi CJ
24 September 2004
At Waigani
N2649	Wilful murder	Sentence to 20 years imprisonment 	The prisoners were mourning the death of their wife and mother. Whilst they were mourning the deceased arrived. The prisoner had previously accused the deceased as being involved in the death of the wife and mother through sorcery. They attacked the deceased and he died as a result of injuries sustained. They dumped the body in the rubbish dump.
The State did not urge the death penalty.
The courts said it is difficult to place the "worst cases" in categories.
HH considered the educational background and influence of the Government upon the life of the prisoner in determining whether the death penalty should be imposed. In this case the husband was a teacher ad therefore he and his sons had been exposed to education. However the belief in sorcery was prevalent in the community from where the prisoners came…
Pleas of not guilty 		

15.	What then would be the appropriate sentence for the prisoner?

16.	The present case would fall under category 2 of the Manu Kovi's Case. In the present case, there was no attempt to stab the deceased. The prisoner acted instantly by pulling out his knife and stabbing the deceased on her right lower abdominal area simultaneously causing her death. Right after stabbing, he (prisoner) told one Sailas Araupa who went to the aid of the deceased that, "he (prisoner) intended to kill her and he killed her because she (deceased) had been going around with other men.

17.	This offence is considered as serious as the commission of the offence (willful murder) and was in full view of the people and in broad day light in the township of Goroka and has witnessed in the recent past, brutal killings and slayings of innocent lives and lives of enemies within the town's boundaries. Goroka town is not a battle field and as such no blood should be spilled within its township boundaries. Goroka town is the modern commercial and business hub and gateway to other Highlands Provinces with people from all different walks of life present. Commission of such offence only creates fear amongst residents of Goroka town and affects people to exercise their right to freedom of movement as guaranteed under the Constitution.

18.	I take in to account the following mitigating and aggravating factors for and against the prisoner.

	FACTORS	
NO	MITIGATING	AGGRAVATING	
1	First time offender 	Use of offensive/dangerous weapons.	
2	Single blow & he acted alone.	Stabbed deceased in front of people & in town 	
3	Express remorse & paid K7250.00 compensation.		
5	De-factor provocation in non legal sense.		

19.	 Considering the prisoner's background, he has shown remorse, the PSR, the means assessment report plus the aggravating factors, I consider s.19 and I sentenced the prisoner to 25 years imprisonment. I deduct the pre-trial period spent in custody which is 1 year, 11 months and 3 days will live the balance of 23 years, 3 weeks, & 4 days. Taking in to account the prisoner has paid compensation and has expressed remorse, I suspend 3 years. The Prisoner will only serve 20 years, 3 weeks and 4 days of custodial sentence.

____________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Accused